Mr. Harkin introduced
the following bill; which was read twice and referred to the
Committee on Health, Education, Labor,
and Pensions

A BILL

To require certain standards and enforcement provisions
to prevent child abuse and neglect in residential programs, and for other
purposes.

1.

Short title

This Act may be cited as the
Stop Child Abuse in Residential
Programs for Teens Act of 2011.

2.

Definitions

In this Act:

(1)

Assistant
Secretary

The term Assistant Secretary means the
Assistant Secretary for Children and Families of the Department of Health and
Human Services.

(2)

Child

The
term child means an individual who has not attained the age of
18.

(3)

Child abuse and
neglect

The term child abuse and neglect has the
meaning given such term in section 3 of the Child Abuse Prevention and
Treatment Act (42 U.S.C. 5101 note).

(4)

Covered
program

(A)

In
general

The term
covered program means each location of a program operated by a
public or private entity that, with respect to one or more children who are
unrelated to the owner or operator of the program—

(i)

provides a
residential environment, such as—

(I)

a program with a
wilderness or outdoor experience, expedition, or intervention;

(II)

a boot camp
experience or other experience designed to simulate characteristics of basic
military training or correctional regimes;

(III)

a therapeutic
boarding school; or

(IV)

a behavioral
modification program; and

(ii)

operates with a
focus on serving children with—

(I)

emotional,
behavioral, or mental health problems or disorders; or

(II)

problems with
alcohol or substance abuse.

(B)

Exclusion

The
term covered program does not include—

(i)

a
hospital licensed by the State; or

(ii)

a foster family
home that provides 24-hour substitute care for children placed away from their
parents or guardians and for whom the State child welfare services agency has
placement and care responsibility and that is licensed and regulated by the
State as a foster family home.

(5)

Protection and
advocacy system

The term protection and advocacy
system means a protection and advocacy system established under section
143 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000
(42 U.S.C. 15043).

(6)

State

The term State has the meaning
given such term in section 3 of the Child Abuse Prevention and Treatment Act
(42 U.S.C. 5101 note).

3.

Standards and
enforcement

(a)

Minimum
standards

(1)

In
general

Not later than 180
days after the date of the enactment of this Act, the Assistant Secretary for
Children and Families of the Department of Health and Human Services shall
require each covered program, in order to provide for the basic health and
safety of children at such a program, to meet the following minimum
standards:

(A)

Child abuse and
neglect shall be prohibited.

(B)

Disciplinary
techniques or other practices that involve the withholding of essential food,
water, clothing, shelter, or medical care necessary to maintain physical
health, mental health, and general safety, shall be prohibited.

(C)

The protection and promotion of the right
of each child at such a program to be free from physical, chemical, and
mechanical restraints and seclusion (as such terms are defined in section 595
of the Public Health Service Act (42 U.S.C. 290jj)) to the same extent and in
the same manner as a non-medical, community-based facility for children and
youth is required to protect and promote the right of its residents to be free
from such restraints and seclusion under such section 595, including the
prohibitions and limitations described in subsection (b)(3) of such
section.

(D)

Acts of physical or mental abuse designed
to humiliate, degrade, or undermine a child’s self-respect shall be
prohibited.

(E)

Each child at such
a program shall have reasonable access to a telephone, and be informed of their
right to such access, for making and receiving phone calls with as much privacy
as possible, and shall have access to the appropriate State or local child
abuse reporting hotline number, and the national hotline number referred to in
subsection (c)(2).

(F)

Each staff member,
including volunteers, at such a program shall be required, as a condition of
employment, to become familiar with what constitutes child abuse and neglect,
as defined by State law.

(G)

Each staff member,
including volunteers, at such a program shall be required, as a condition of
employment, to become familiar with the requirements, including with State law
relating to mandated reporters, and procedures for reporting child abuse and
neglect in the State in which such a program is located.

(H)

Full disclosure,
in writing, of staff qualifications and their roles and responsibilities at
such program, including medical, emergency response, and mental health
training, to parents or legal guardians of children at such a program,
including providing information on any staff changes, including changes to any
staff member’s qualifications, roles, or responsibilities, not later than 10
days after such changes occur.

(I)

Each staff member
at a covered program described in subclause (I) or (II) of section 2(4)(A)(i)
shall be required, as a condition of employment, to be familiar with the signs,
symptoms, and appropriate responses associated with heatstroke, dehydration,
and hypothermia.

(J)

Each staff member, including volunteers
with unsupervised contact with children and youth, or more than 30 hours of
supervised contact time per year, shall be required, as a condition of
employment, to submit to a criminal history check, including a name-based
search of the National Sex Offender Registry established pursuant to the Adam
Walsh Child Protection and Safety Act of 2006 (Public Law 109–248; 42 U.S.C.
16901 et seq.), a search of the State criminal registry or repository in the
State in which the covered program is operating, and a Federal Bureau of
Investigation fingerprint check. An individual shall be ineligible to serve in
a position with any contact with children at a covered program if any such
record check reveals a felony conviction for child abuse or neglect, spousal
abuse, a crime against children (including child pornography), or a crime
involving violence, including rape, sexual assault, or homicide, but not
including other physical assault or battery.

(K)

Policies and
procedures for the provision of emergency medical care, including policies for
staff protocols for implementing emergency responses.

(L)

All promotional
and informational materials produced by such a program shall include a
hyperlink to or the URL address of the Web site created by the Assistant
Secretary pursuant to subsection (c)(1)(A).

(M)

Policies to require parents or legal
guardians of a child attending such a program—

(i)

to
notify, in writing, such program of any medication the child is taking;

(ii)

to
be notified within 24 hours of any changes to the child’s medical treatment and
the reason for such change; and

(iii)

to
be notified within 24 hours of any missed dosage of prescribed
medication.

(N)

Procedures for
notifying immediately, to the maximum extent practicable, but not later than
within 48 hours, parents or legal guardians with children at such a program of
any—

(i)

on-site
investigation of a report of child abuse and neglect;

(ii)

violation of the
health and safety standards described in this paragraph; and

(iii)

violation of
State licensing standards developed pursuant to section 114(b)(1) of the Child
Abuse Prevention and Treatment Act, as added by section 7 of this Act.

(O)

Other standards
the Assistant Secretary determines appropriate to provide for the basic health
and safety of children at such a program.

(2)

Regulations

(A)

Interim
regulations

Not later than
180 days after the date of the enactment of this Act, the Assistant Secretary
shall promulgate and enforce interim regulations to carry out paragraph
(1).

(B)

Public
comment

The Assistant
Secretary shall, for a 90-day period beginning on the date of the promulgation
of interim regulations under subparagraph (A) of this paragraph, solicit and
accept public comment concerning such regulations. Such public comment shall be
submitted in written form.

(C)

Final
regulations

Not later than 90
days after the conclusion of the 90-day period referred to in subparagraph (B)
of this paragraph, the Assistant Secretary shall promulgate and enforce final
regulations to carry out paragraph (1).

(b)

Monitoring and
enforcement

(1)

On-going review
process

Not later than 180
days after the date of the enactment of this Act, the Assistant Secretary shall
implement an on-going review process for investigating and evaluating reports
of child abuse and neglect at covered programs received by the Assistant
Secretary from the appropriate State, in accordance with section 114(b)(3) of
the Child Abuse Prevention and Treatment Act, as added by section 7 of this
Act. Such review process shall—

(A)

include an
investigation to determine if a violation of the standards required under
subsection (a)(1) has occurred;

(B)

include an
assessment of the State’s performance with respect to appropriateness of
response to and investigation of reports of child abuse and neglect at covered
programs and appropriateness of legal action against responsible parties in
such cases;

(C)

be completed not
later than 60 days after receipt by the Assistant Secretary of such a
report;

(D)

not interfere with
an investigation by the State or a subdivision thereof; and

(E)

be implemented in
each State in which a covered program operates until such time as each such
State has satisfied the requirements under section 114(c) of the Child Abuse
Prevention and Treatment Act, as added by section 7 of this Act, as determined
by the Assistant Secretary, or two years has elapsed from the date that such
review process is implemented, whichever is later.

(2)

Civil
penalties

Not later than 180 days after the date of the enactment
of this Act, the Assistant Secretary shall promulgate regulations establishing
civil penalties for violations of the standards required under subsection
(a)(1). The regulations establishing such penalties shall incorporate the
following:

(A)

Any owner or
operator of a covered program at which the Assistant Secretary has found a
violation of the standards required under subsection (a)(1) may be assessed a
civil penalty not to exceed $50,000 per violation.

(B)

All penalties
collected under this subsection shall be deposited in the appropriate account
of the Treasury of the United States.

(c)

Dissemination of
information

The Assistant Secretary shall establish, maintain,
and disseminate information about the following:

(1)

Web sites made
available to the public that contain, at a minimum, the following:

(A)

The name and each
location of each covered program, and the name of each owner and operator of
each such program, operating in each State, and information regarding—

(i)

each such program’s history of violations
of—

(I)

regulations
promulgated pursuant to subsection (a); and

(II)

section 114(b)(1)
of the Child Abuse Prevention and Treatment Act, as added by section 7 of this
Act;

(ii)

each such program’s current status with the
State licensing requirements under section 114(b)(1) of the Child Abuse
Prevention and Treatment Act, as added by section 7 of this Act;

(iii)

any deaths that
occurred to a child while under the care of such a program, including any such
deaths that occurred in the five-year period immediately preceding the date of
the enactment of this Act, and including the cause of each such death;

(iv)

owners or
operators of a covered program that was found to be in violation of the
standards required under subsection (a)(1), or a violation of the licensing
standards developed pursuant to section 114(b)(1) of the Child Abuse Prevention
and Treatment Act, as added by section 7 of this Act, and who subsequently own
or operate another covered program; and

(v)

any penalties
levied under subsection (b)(2) and any other penalties levied by the State,
against each such program.

(B)

Information on
best practices for helping adolescents with mental health disorders,
conditions, behavioral challenges, or alcohol or substance abuse, including
information to help families access effective resources in their
communities.

(2)

A
national toll-free telephone hotline to receive complaints of child abuse and
neglect at covered programs and violations of the standards required under
subsection (a)(1).

(d)

Action

The
Assistant Secretary shall establish a process to—

(1)

ensure complaints
of child abuse and neglect received by the hotline established pursuant to
subsection (c)(2) are promptly reviewed by persons with expertise in evaluating
such types of complaints;

(2)

immediately notify
the State, appropriate local law enforcement, and the appropriate protection
and advocacy system of any credible complaint of child abuse and neglect at a
covered program received by the hotline;

(3)

investigate any
such credible complaint not later than 30 days after receiving such complaint
to determine if a violation of the standards required under subsection (a)(1)
has occurred; and

(4)

ensure the
collaboration and cooperation of the hotline established pursuant to subsection
(c)(2) with other appropriate National, State, and regional hotlines, and, as
appropriate and practicable, with other hotlines that might receive calls about
child abuse and neglect at covered programs.

4.

Enforcement by
the Attorney General

If the
Assistant Secretary determines that a violation of subsection (a)(1) of section
3 has not been remedied through the enforcement process described in subsection
(b)(2) of such section, the Assistant Secretary shall refer such violation to
the Attorney General for appropriate action. Regardless of whether such a
referral has been made, the Attorney General may, sua sponte, file a complaint
in any court of competent jurisdiction seeking equitable relief or any other
relief authorized by this Act for such violation.

5.

Report

Not later than one year after the date of
the enactment of this Act and annually thereafter, the Secretary of Health and
Human Services, in coordination with the Attorney General shall submit to the
Committee on Education and Labor of the House of Representatives and the
Committee on Health, Education, Labor, and Pensions of the Senate, a report on
the activities carried out by the Assistant Secretary and the Attorney General
under this Act, including—

(1)

a summary of findings from on-going reviews
conducted by the Assistant Secretary pursuant to section 3(b)(1), including a
description of the number and types of covered programs investigated by the
Assistant Secretary pursuant to such section;

(2)

a
description of types of violations of health and safety standards found by the
Assistant Secretary and any penalties assessed;

(3)

a
summary of State progress in meeting the requirements of this Act, including
the requirements under section 114 of the Child Abuse Prevention and Treatment
Act, as added by section 7 of this Act;

(4)

a
summary of the Secretary’s oversight activities and findings conducted pursuant
to subsection (d) of such section 114; and

(5)

a description of the activities undertaken
by the national toll-free telephone hotline established pursuant to section
3(c)(2).

6.

Authorization of
appropriations

There is
authorized to be appropriated to the Secretary of Health and Human Services
$15,000,000 for each of fiscal years 2012 through 2016 to carry out this Act
(excluding the amendment made by section 7 of this Act and section 8 of this
Act).

7.

Additional
eligibility requirements for grants to States to prevent child abuse and
neglect at residential programs

(a)

In
general

Title I of the Child
Abuse Prevention and Treatment Act (42 U.S.C. 5101 et seq.) is amended by
adding at the end the following new section:

114.

Additional
eligibility requirements for grants to States to prevent child abuse and
neglect at residential programs

(a)

Definitions

In
this section:

(1)

Child

The
term child means an individual who has not attained the age of
18.

(2)

Covered
program

(A)

In
general

The term
covered program means each location of a program operated by a
public or private entity that, with respect to one or more children who are
unrelated to the owner or operator of the program—

(i)

provides a
residential environment, such as—

(I)

a program with a
wilderness or outdoor experience, expedition, or intervention;

(II)

a boot camp
experience or other experience designed to simulate characteristics of basic
military training or correctional regimes;

(III)

a therapeutic
boarding school; or

(IV)

a behavioral
modification program; and

(ii)

operates with a
focus on serving children with—

(I)

emotional,
behavioral, or mental health problems or disorders; or

(II)

problems with
alcohol or substance abuse.

(B)

Exclusion

The
term covered program does not include—

(i)

a
hospital licensed by the State; or

(ii)

a foster family home that provides 24-hour
substitute care for children place away from their parents or guardians and for
whom the State child welfare services agency has placement and care
responsibility and that is licensed and regulated by the State as a foster
family home.

(3)

Protection and
advocacy system

The term protection and advocacy
system means a protection and advocacy system established under section
143 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000
(42 U.S.C. 15043).

(b)

Eligibility
requirements

To be eligible to receive a grant under section 106,
a State shall—

(1)

not later than
three years after the date of the enactment of this section, develop policies
and procedures to prevent child abuse and neglect at covered programs operating
in such State, including having in effect health and safety licensing
requirements applicable to and necessary for the operation of each location of
such covered programs that include, at a minimum—

(A)

standards that
meet or exceed the standards required under section 3(a)(1) of the
Stop Child Abuse in Residential Programs for
Teens Act of 2011;

(B)

the provision of
essential food, water, clothing, shelter, and medical care necessary to
maintain physical health, mental health, and general safety of children at such
programs;

(C)

policies for
emergency medical care preparedness and response, including minimum staff
training and qualifications for such responses; and

(D)

notification to
appropriate staff at covered programs if their position of employment meets the
definition of mandated reporter, as defined by the State;

(2)

develop policies
and procedures to monitor and enforce compliance with the licensing
requirements developed in accordance with paragraph (1), including—

(A)

designating an
agency to be responsible, in collaboration and consultation with State agencies
providing human services (including child protective services, and services to
children with emotional, psychological, developmental, or behavioral
dysfunctions, impairments, disorders, or alcohol or substance abuse), State law
enforcement officials, the appropriate protection and advocacy system, and
courts of competent jurisdiction, for monitoring and enforcing such
compliance;

(B)

establishing a State licensing application
process through which any individual seeking to operate a covered program would
be required to disclose all previous substantiated reports of child abuse and
neglect and all child deaths at any businesses previously or currently owned or
operated by such individual, except that substantiated reports of child abuse
and neglect may remain confidential and all reports shall not contain any
personally identifiable information relating to the identity of individuals who
were the victims of such child abuse and neglect;

(C)

conducting
unannounced site inspections not less often than once every two years at each
location of a covered program;

(D)

creating a non-public database, to be
integrated with the annual State data reports required under section 106(d), of
reports of child abuse and neglect at covered programs operating in the State,
except that such reports shall not contain any personally identifiable
information relating to the identity of individuals who were the victims of
such child abuse and neglect; and

(E)

implementing a
policy of graduated sanctions, including fines and suspension and revocation of
licences, against covered programs operating in the State that are out of
compliance with such health and safety licensing requirements;

(3)

if the State is
not yet satisfying the requirements of this subsection, in accordance with a
determination made pursuant to subsection (c), develop policies and procedures
for notifying the Secretary and the appropriate protection and advocacy system
of any report of child abuse and neglect at a covered program operating in the
State not later than 30 days after the appropriate State entity, or subdivision
thereof, determines such report should be investigated and not later than 48
hours in the event of a fatality;

(4)

if the Secretary
determines that the State is satisfying the requirements of this subsection, in
accordance with a determination made pursuant to subsection (c), develop
policies and procedures for notifying the Secretary if—

(A)

the State
determines there is evidence of a pattern of violations of the standards
required under paragraph (1) at a covered program operating in the State or by
an owner or operator of such a program; or

(B)

there is a child
fatality at a covered program operating in the State;

(5)

develop policies and procedures for
establishing and maintaining a publicly available database of all covered
programs operating in the State, including the name and each location of each
such program and the name of the owner and operator of each such program,
information on reports of substantiated child abuse and neglect at such
programs (except that such reports shall not contain any personally
identifiable information relating to the identity of individuals who were the
victims of such child abuse and neglect and that such database shall include
and provide the definition of substantiated used in compiling the
data in cases that have not been finally adjudicated), violations of standards
required under paragraph (1), and all penalties levied against such
programs;

(6)

annually submit to
the Secretary a report that includes—

(A)

the name and each
location of all covered programs, including the names of the owners and
operators of such programs, operating in the State, and any violations of State
licensing requirements developed pursuant to subsection (b)(1); and

(B)

a description of
State activities to monitor and enforce such State licensing requirements,
including the names of owners and operators of each covered program that
underwent a site inspection by the State, and a summary of the results and any
actions taken; and

(7)

if the Secretary determines that the State
is satisfying the requirements of this subsection, in accordance with a
determination made pursuant to subsection (c), develop policies and procedures
to report to the appropriate protection and advocacy system any case of the
death of an individual under the control or supervision of a covered program
not later than 48 hours after the State is informed of such death.

(c)

Secretarial
determination

The Secretary shall not determine that a State’s
licensing requirements, monitoring, and enforcement of covered programs
operating in the State satisfy the requirements of subsection (b)
unless—

(1)

the State
implements licensing requirements for such covered programs that meet or exceed
the standards required under subsection (b)(1);

(2)

the State
designates an agency to be responsible for monitoring and enforcing compliance
with such licensing requirements;

(3)

the State conducts
unannounced site inspections of each location of such covered programs not less
often than once every two years;

(4)

the State creates a non-public database of
such covered programs, to include information on reports of child abuse and
neglect at such programs (except that such reports shall not contain any
personally identifiable information relating to the identity of individuals who
were the victims of such child abuse and neglect);

(5)

the State
implements a policy of graduated sanctions, including fines and suspension and
revocation of licenses against such covered programs that are out of compliance
with the health and safety licensing requirements under subsection (b)(1);
and

(6)

after a review of
assessments conducted under section 3(b)(1)(B) of the
Stop Child Abuse in Residential Programs for
Teens Act of 2011, the Secretary determines the State is
appropriately investigating and responding to allegations of child abuse and
neglect at such covered programs.

(d)

Oversight

(1)

In
general

Beginning two years
after the date of the enactment of the Stop
Child Abuse in Residential Programs for Teens Act of 2011, the
Secretary shall implement a process for continued monitoring of each State that
is determined to be satisfying the licensing, monitoring, and enforcement
requirements of subsection (b), in accordance with a determination made
pursuant to subsection (c), with respect to the performance of each such State
regarding—

(A)

preventing child
abuse and neglect at covered programs operating in each such State; and

(B)

enforcing the
licensing standards described in subsection (b)(1).

(2)

Evaluations

The
process required under paragraph (1) shall include in each State, at a
minimum—

(A)

an investigation
not later than 60 days after receipt by the Secretary of a report from a State,
or a subdivision thereof, of child abuse and neglect at a covered program
operating in the State, and submission of findings to appropriate law
enforcement or other local entity where necessary, if the report
indicates—

(i)

a
child fatality at such program; or

(ii)

there is evidence
of a pattern of violations of the standards required under subsection (b)(1) at
such program or by an owner or operator of such program;

(B)

an annual review
by the Secretary of cases of reports of child abuse and neglect investigated at
covered programs operating in the State to assess the State’s performance with
respect to the appropriateness of response to and investigation of reports of
child abuse and neglect at covered programs and the appropriateness of legal
actions taken against responsible parties in such cases; and

(C)

unannounced site
inspections of covered programs operating in the State to monitor compliance
with the standards required under section 3(a) of the
Stop Child Abuse in Residential Programs for
Teens Act of 2011.

(3)

Enforcement

If the Secretary determines, pursuant to an
evaluation under this subsection, that a State is not adequately implementing,
monitoring, and enforcing the licensing requirements of subsection (b)(1), the
Secretary shall require, for a period of not less than one year, that—

(A)

the State shall
inform the Secretary of each instance there is a report to be investigated of
child abuse and neglect at a covered program operating in the State; and

(B)

the Secretary and
the appropriate local agency shall jointly investigate such
report.

.

(b)

Authorization of
appropriations

Section
112(a)(1) of the Child Abuse Prevention and Treatment Act (42 U.S.C.
5106h(a)(1)) is amended by striking $120,000,000 and all that
follows through the period and inserting $235,000,000 for each of fiscal
years 2012 through 2016..

(c)

Conforming
amendments

(1)

Coordination
with available resources

Section 103(c)(1)(D) of the Child Abuse
Prevention and Treatment Act (42 U.S.C. 5104(c)(1)(D)) is amended by inserting
after specific the following: (including reports of child
abuse and neglect occurring at covered programs (except that such reports shall
not contain any personally identifiable information relating to the identity of
individuals who were the victims of such child abuse and neglect), as such term
is defined in section 114).

(2)

Further
requirement

Section 106(b)(1)
of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5106a(b)(1)) is
amended by adding at the end the following new subparagraph:

(D)

Further
requirement

To be eligible to
receive a grant under this section, a State shall comply with the requirements
under section 114(b) and shall include in the State plan submitted pursuant to
subparagraph (A) a description of the activities the State will carry out to
comply with the requirements under such section
114(b).

in paragraph (1),
by inserting before the period at the end the following: (including
reports of child abuse and neglect occurring at covered programs (except that
such reports shall not contain any personally identifiable information relating
to the identity of individuals who were the victims of such child abuse and
neglect), as such term is defined in section 114); and

(B)

in paragraph (6),
by inserting before the period at the end the following: or who were in
the care of a covered program, as such term is defined in section
114.

(d)

Clerical
amendment

Section 1(b) of the Child Abuse Prevention and
Treatment Act (42 U.S.C. 5101 note) is amended by inserting after the item
relating to section 113 the following new item:

Sec. 114. Additional eligibility
requirements for grants to States to prevent child abuse and neglect at
residential
programs.

.

8.

Study and report on
outcomes in covered programs

(a)

Study

The Secretary of Health and Human Services
shall conduct a study, in consultation with relevant agencies and experts, to
examine the outcomes for children in both private and public covered programs
under this Act encompassing a broad representation of treatment facilities and
geographic regions.

(b)

Report

The Secretary of Health and Human Services
shall submit to the Committee on Health, Education, Labor, and Pensions of the
Senate and the Committee on Education and the Workforce of the House of
Representatives a report that contains the results of the study conducted under
subsection (a).

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